On Fri, 11 Apr 1997, G.W. Sandy Schaefer <schaefer[_at_]vaxa.cis.uwosh.edu> wrote:
>
> It seems to me (non-lawyer musician) that senior pictures would be
> a "work made for hire" with the copyright belonging to the student
> who pays for the pictures or at least the school how hired the
> photographer.
Works for hire are defined in 17 U.S.C. section 101 with two possibilies stated. The first is:
"a work prepared by an employee within the scope of his or her employment."
I don't recall the original question or whether it spelled out the relationships between the parties, but if the photographer is an employee of the school, then the copyright would belong to the school. If the photographer was an independent contractor engaged by the school, then the focus would be on whether he was truly independent or, whether by the rules of agency law and the way that has been interpreted by some of the cases, the relationship truly was an independent one or not. Assuming it was, the copyright would belong to the photographer. If not, it would be a work for hire, and the copyright would belong to the school. On the face of it, it doesn't sound likely.
The other possiblity in section 101 is, in part:
"a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
Here two things need to happen: one is that the work needs to fall into one of the categories named in the statute, and, two, there needs to be a signed written agreement before the work is created.
I don't really think all that analysis is necessary, though. If you want to maintain in this second part that there was an agreement that the school owned the copyright, even if it wasn't a work for hire, there could have been an agreement between the photographer and the school transferring ownership of the copyright to the school.
Just because the student paid for the pictures doesn't mean he owns the copyright to those pictures. He does, however, own the pictures.
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